Jon_call's List: Creveling 108 Review

• Furthermore, because zoning ordinances are in derogation of a property owner's common-law right to unrestricted use of his or her property, provisions therein restricting property uses should be strictly construed, and provisions permitting property uses should be liberally construed in favor of the property owner. Sammons v. Village of Batavia, 53 Ohio App.3d 87, 557 N.E.2d 1246, 1249 (1988); see 83 Am.Jur.2d Zoning & Planning § 977 (1992).^[10]

• "It is well-settled that as zoning regulations deprive the owners of real property of certain uses thereof, and 90*90 are in derogation of the common law, they must be strictly construed and not extended by implication."
• Thus, in determining a permitted use of property under zoning classifications in which terms and language therein are not otherwise defined, common and ordinary meaning of such terms must be considered and the terms and language should be liberally construed in favor of the permitted use proposed by the property owner so as not to extend the restrictions to any limitation of use not clearly prescribed therein. Cicerella, Inc. v. Jerusalem Twp. Bd. of Zoning Appeals (1978), 59 Ohio App. 2d 31, 13 O.O. 3d 99, 392 N.E. 2d 574. See, also, Saunders, supra; Abate, supra.
• Such statutory construction is tantamount to an impermissible extension by implication in violation of Dauben, supra, and its progeny which require a permitted use to be liberally construed in favor of permitting the proposed use.

1 more annotation...

• At the outset, we note that "statutes or ordinances which impose restrictions on the use of private property are strictly construed and their scope cannot be extended to include limitations not therein included or prescribed." Smith v. City of Mobile, 374 So.2d 305, 307 (Ala.1979). We agree with the Court of Civil Appeals that 1355*1355 Smith stands for the proposition that land use restrictions are to be strictly construed. However, we take this opportunity to note that the full context of the Smith quote indicates that land use restrictions are to be strictly construed in favor of the landowner.

• We take a broad view of the ordinance because of the legal principle that because "zoning regulations are in derogation of private rights of ownership, words used in a zoning ordinance should be given their broadest meaning when there is no definition or clear intent to the contrary and the ordinance should be interpreted in favor of the property owner." [Footnote omitted]. Rinker Materials Corp. v. City of North Miami, 286 So.2d 552 (Fla. 1973).

• *43 Zoning ordinances are in derogation of the common law, and their provisions must be strictly construed. Foster Village Community Ass'n v. Hess, 4 Haw. App. 463, 667 P.2d 850 (1983). Nevertheless, the terms of a zoning ordinance should be accorded their natural and most obvious meaning "`when there is no manifest legislative intent contrarywise.'" County of Maui v. Puamana Management Corp., 2 Haw.App. 352, 356, 631 P.2d 1215, 1218 (1981) (quoting Moyer v. Board of Zoning Appeals, 233 A.2d 311 (Me. 1967)). In interpreting a zoning ordinance, the duty of this court is to ascertain and give effect to the intent of the Honolulu city council (city council). Foster Village Community Ass'n v. Hess, supra. Legislative intent should be determined, if possible, from the language of the ordinance, and the language must be read in the context of the entire ordinance and construed in a manner consistent with the purposes of the ordinance. Id.

• First, "[t]he public need must be considered in an economic and social sense. It does not mean that without the proposed [use], the economic or social survival of the public is threatened," and public necessity "must be somewhat liberally construed, for comparatively few things can be regarded as an absolute necessity." Id.,
• Second, when a board makes its decision, "[a] rational relationship between the facts found and the conclusion reached must exist and should be stated. We need then, in addition to the findings of fact, a statement of the reasons for the agency's ultimate determination."
• Zoning ordinances are in derogation of the common law, and accordingly are to be construed in favor of the free use of land. Ayers v. Porter Cty. Plan Com'n. (1989), Ind. App., 544 N.E.2d 213. We will not extend restrictions on land use by implication. Id. Here, to allow the Board's interpretation of public necessity to prevail would unduly restrict the free use of land by leaving one of the statutory criteria for a special exception 1098*1098 virtually unobtainable. We are also required, if at all possible, to construe zoning ordinances to find their validity.

1 more annotation...

• When interpreting the language of an ordinance to determine the extent of a restriction upon the use of the property, the language must be interpreted, where doubt exists, in favor of the property owner. Talcott v Midland, 150 Mich App 143, 147; 387 NW2d 845 (1985).

• We find that appellants' argument presents too narrow and too rigid an interpretation of the zoning ordinance. It has been elsewhere established that since zoning laws and ordinances are in derogation of the common law right to free use of private property, such ordinances should be strictly construed. See e.g., Foster Village Community Ass'n v. Hess (1983), 4 Hawaii App. 463, 667 P.2d 850, 854; Specht v. City of Page (App. 1981), 128 Ariz. 593, 627 P.2d 1091, 1095; Keller v. City of Bellingham (1979), 92 Wash.2d 726, 600 P.2d 1276, 1279. At the very least, such ordinances must be given a fair and reasonable interpretation with some regard given the proposed use.
• As noted by the District Court, the County Zoning Plan does not contain any definition of "pipeline" decisive of the issue, nor are there any Montana statutes or decisional authorities which provide controlling 426*426 guidance. Accordingly, the question fell to the zoning officials assigned to interpret and apply the zoning regulations consistent with the terms and purposes of the County Zoning Plan. These officials decided that pursuant to the County Zoning Plan, this fuel tank could be considered a part of the pipeline and is therefore permitted in an A-O zone. We agree that when interpreting a zoning ordinance, considerable judicial deference should be accorded the interpretation provided by an officer charged with its enforcement.

• Courts should construe municipal ordinances, including zoning ordinances, using the same rules of construction applicable to statutes. Carroll Blake Constr. Co. v. Boyle, 140 Tenn. 166, 181, 203 S.W. 945, 948 (1918). Thus, a zoning ordinance should be construed consistently with state law, Draper v. Haynes, 567 S.W.2d 462, 465 (Tenn. 1978), and if it can be construed in two ways, the courts should adopt the construction that upholds the ordinance's validity. Rawlins v. Braswell, 191 Tenn. 285, 291, 231 S.W.2d 1021, 1023 (1950); Hermitage Laundry Co. v. City of Nashville, 186 Tenn. 190, 193, 209 S.W.2d 5, 6 (1948).

   

  The city insists that a double-wide manufactured home fits within the zoning ordinance's "mobile home" definition. While we respect the local authorities' long-standing interpretation, see 6 McQuillin on Municipal Corporations § 20.45, at 146 (3d ed. 1988), we decline to follow it in this case because doing so would be to construe the zoning ordinance in a manner inconsistent with Tenn. Code Ann. § 13-24-201. We prefer to interpret the ordinance in a manner consistent with state law.

• Zoning ordinances should also be construed in favor of property owners' right to the free use of their property. State ex rel. Morris v. City of Nashville, 207 Tenn. 672, 680, 343 S.W.2d 847, 850 (1961); State ex rel. Wright v. City of Oak Hill, 204 Tenn. 353, 356, 321 S.W.2d 557, 559 (1959); State ex rel. SCA Chemical Servs., Inc. v. Sanidas, 681 S.W.2d 557, 562 (Tenn. Ct. App. 1984).

   

  A "mobile home" as defined in Section 12.10 of the zoning ordinance is a single, movable structure that arrives "complete" at the site where it is to be occupied. The word "complete" in the definition of "mobile home" modifies "structure." Because of the inclusion of the word "complete" in the ordinance's definition of "mobile home," we find, as did the Georgia Supreme Court, that a manufactured residential structure delivered to the site in two separate pieces was not a "mobile home" because it was not a complete structure at the time it was delivered to the site.^[10] City of Cordele v. Hill, 250 Ga. 628, 300 S.E.2d 161, 162 (1983).

• We must read the ordinance strictly, resolving any doubts in favor of the landowner. See, e.g., In re Vitale, 151 Vt. 580, 584, 563 A.2d 613, 616 (1989) ("in construing land use regulations any uncertainty must be decided in favor of the property owner"). There is no reasonable way to conclude that the ordinance was intended to permit reconstruction of a noncomplying structure damaged by a catastrophic occurrence as opposed to damage caused by termites or dry rot, for example.